Tuesday, December 9, 2014

Must Read: Tenth Circuit on Sentencing Error

This is the first of a two-part post on Monday’s Tenth
Circuit decision in United States v. Sabillon Umana. This is a rich, nuanced opinion that deserves most careful attention. It’s also a fun read.

The issues appear anodyne at first glance: a guideline
calculation error, a court’s 5K1.1 authority to depart, and plain error review.
But the Tenth Circuit takes full opportunity to chamber the guidelines’ function, to
question the court’s authority to find facts, and to make plain-error review meaningful. Here, we unpack the details of this decision, and what we can do with
it.

We start with the guideline error. The district court
estimated a base offense level of 32 (why?), then asked for factual justification from the probation officer. The officer responded with the type and quantity of drugs that would justify this offense level. The Circuit rejected “backing into” a particular guideline as disordered (especially since the district court, via the put-on-the-spot probation officer, made an unrealized math mistake that should have subtracted two
levels from the base offense level).
“[F]acts drive sentencing decisions, not the other way around." Simple
enough, right? But the Circuit did not stop there (we'll give you the court's words in blue; our two cents follow in black).

“The guidelines seek to supply some sense of what other
courts across the country are doing in similar cases and what sentencing
experts think may be appropriate.” Okay, but many guidelines have veered far from this function. As the USSC reported, two
thirds of courts apply below-guideline sentences to child pornography offenses,
yet 2G2.2 remains unchanged. Neither the loss guideline table nor the actual-meth table have any expert or empirical underpinnings. These are examples of particular guidelines that should be devalued, if not outright ignored.

“[A] properly calculated guidelines sentence provides
useful data, a ‘starting point’ or ‘initial’ benchmark . . .” A point to begin, not a place to end.A court is not limited to information contemplated by the guideline. This is why standard ‘guideline’ plea agreements can be so constricting and
really do not conform to the law of sentencing. Even when it contains the
standard provisio that all information will be available to the court, that is
rather meaningless if it cannot be presented and argued for the court’s full
consideration.

“Put simply, the court is supposed to start with the
facts, then consult empirics about similarly situated defendants and the
expertise of the Sentencing Commission, and only then make an individualized judgment about the
case at hand informed by that information.” Again, the empirics of
similarly situated defendants and expertise of the Commission are not always
embedded in the guideline calculation, and without that basis, the guidelines
cannot reliably inform the court.

“We admit the proper order of operations we’ve outlined
rests in part on a questionable foundation. It assumes that a district judge
may either decrease or increase a defendant’s sentence (within the statutorily
authorized range) based on facts the judge finds without the aid of a jury or
the defendant’s consent. It is far from certain whether the Constitution allows
at least the second half of that equation. For starters, by "defendant's sentence," the Court presumably means the guidelines range. In other words, the Court is uncertain if district courts can find facts that either increase or decrease the defendant's guidelines range beyond the range applicable based on the jury's verdict or the defendant's admissions.

This uncertainty lies in a recent dissent from the denial of certiorari (we talked about something similar to this just yesterday). Justice Scalia wrote it. Justice Thomas joined it. So did Justice Ginsburg. The dissent states that "any fact necessary to prevent a sentence from being substantively unreasonable . . . is an element that must be either admitted by the defendant or found by the jury."
The ground zero of this debate is United States v. Booker, the most famous (infamous?) of all modern SCOTUS sentencing decisions (it made the Guidelines advisory, if you've forgotten). The decision in Booker has two parts. The first finds a Sixth Amendment violation in judge-found facts that increase a defendant's sentence (i.e., the applicable guidelines range). Justice Stevens wrote that decision, and Justices Scalia, Thomas, and Ginsburg joined it (so did Justice Souter). So the recent dissent in Jones makes sense: three Justices stating their decade-old view on the subject, but doing so in slightly different terms (terms that take into account more recent developments in sentencing law, like substantive reasonableness). And this view is what the Tenth Circuit hints at in its newest decision.
But the second part of Booker, written by Justice Breyer, and joined by then Chief Justice Rehnquist, Kennedy, O'Connor, and Justice Ginsburg, nixes any Sixth Amendment fix by excising the statutory provision making the guidelines mandatory. In other words, judge-found facts that increase the guidelines range are okay as long as the guidelines themselves are advisory, and not mandatory. This undercuts what the Tenth Circuit just said in its decision.

Or does it? Consider that there are four Justices on the Court that were not around for Booker (Roberts, Alito, Kagan, Sotomayor). And further consider that the fifth vote for the remedial fix in Booker -- Justice Ginsburg -- just joined a dissent that indubitably reads as a criticism of it. And further consider that Justice Scalia's dissent rephrases the issue in terms of substantive reasonableness, and a judge-found fact's ability to turn a reasonable sentence into an unreasonable one, and, in turn, an unconstitutional one.So, what does this mean? Don’t give
up the argument that the sentencing court cannot make fact-findings that increase the guideline range; we have
confirmation that the Court holds open the question. Here, the factual context is drug type and amount. But this Sixth Amendment/substantive reasonableness issue reaches to loss amounts and other specific offense characteristics (indeed, to any Guidelines enhancement not based on a jury verdict or a defendant's admissions). And, it might also reach to prior convictions at some point (Almendarez-Torres is still the law, but it hangs by a thread).